(Published in the journal Pace diritti umani/Peace Human Rights, N. 2, May-August 2005)
The Case for the International Criminal Court, ICC
Roberto Toscano[*]
For someone who is not a professional jurist, but a professional diplomat, the focus of an evaluation of the meaning of the International Criminal Court is not its significance as a fundamental turning point in the development of international criminal law, but rather its impact on the evolution of the system of international relations.
Indeed, the establishment of ICC affects many different aspects of international relations, and – as those who oppose it are correctly aware of – will entail deep and numerous consequences.
1. Putting teeth into humanitarian law
For all its unquestionable development, both in terms of doctrine and of actual norms (be they customary or based on treaties) humanitarian law has been confronted, especially after the end of the Cold War, with a radical challenge threatening a radical crisis. As every other branch of international law, humanitarian law has been created by, and for, nation-states. Unable to put war outside the law (as pacifists would desire), nation-states have opted for putting law into war in order to introduce limitations both as to means and to targets of armed violence.
No one would doubt the legal nature of this complex of norms – norms that were put to the test in numerous international conflicts and basically proved their validity and effectiveness.
The last decade of the XX century confronted us with a different type of conflict. One in which the warring sides were not states, but more or less organized armed groups, from those led by Balkan warlords to Somali clans. Such groups, and their leaders, showed not only no knowledge of international humanitarian law, but no intention of abiding by it even when they were invited to do so by the international community.
Facing these new, internal conflicts, humanitarian law showed its limitations, inevitable when confronted with combatants who recognized no obligation vis-à-vis laws made by nation-states and for nation-states.
The setting up of an International Criminal Court addresses this problem, fills this gap. As the President of the International Committee of the Red Cross has written: “In a groundbreaking development, the Court’s Statute unequivocally lists acts considered war crimes when committed in non-international armed conflict” [1].
The distinction between international and internal conflict is now virtually blurred from the point of view that should be central for humanitarian law: not the nature of the perpetrator, but the essence of the human value we must protect.
The significance of ICC for humanitarian law is, however, even deeper than the overcoming of the international/internal divide. By including the crime of aggression, the Statute of the Court reverts to the original ambition of the law of war: that of addressing not only jus in bello but also jus ad bellum. In spite of all the difficulties in reaching consensus on the definition of aggression (and of the even more evident difficulties in applying the concept) there is something extremely significant in this shift, something that it would be a mistake to dismiss as unrealistic.
2. The inclusion of human rights
The debate on the difference, but also the links, between humanitarian law and human rights law is a well-known and very interesting one. The basic difference is that, whereas humanitarian law addresses the relationship between nation-states, human rights law is concerned with the treatment that nation-states give their own citizens, or subjects.
“ The law of armed conflict had the purpose of restricting the uses of violence between States and (in the case of civil wars) between governments and rebels. Human rights law had (among other things) the purpose of averting and restricting the uses of violence by governments towards their subjects whether formally in rebellion or not; a field of conflict for which international law by definition brought no remedies” [2]
This is so true that at Nuremberg the Holocaust did not – could not – be addressed for what it was, a crime against humanity coincident with but not necessarily related to war (it is enough to think of the extermination of German Jews). The international community, and in particular the victorious allies, were not ready – in their concern for preserving sovereignty against outside questioning and interference – to qualify those crimes in terms of human rights. Thus,
“ ‘Crimes against humanity were a canny, cautious half-way house to human rights. They were so to speak invented (…..) in order to make possible the prosecution of Axis leaders for the dreadful things they had done distant from battle-fronts and in time of peace as well as war (….) “[3] But “the four great powers involved in shaping the Nuremberg indictment were not about to set a precedent that could immediately be used to their own disadvantage. To ‘crimes against humanity’ was therefore tacked the qualification that such crimes had to have been committed during the war or as a part of the alleged criminal conspiracy to launch the war.”[4]
The definition, in the ICC Statute, of crimes falling within the jurisdiction of the Court finally sets aside this limitation, so that the birth of the International Criminal Court can be considered a major turning point not only for humanitarian law but also for human rights law, revealing their substantial coincidence and showing also that the only difference between these two branches of the legal protection of the human being consists in the earlier, faster development of the law of war, given the priority attributed to it by nation-states in their prolonged era of monopolistic, unquestioned control of international society. Thanks to the ICC, human rights law takes one more step, and a very significant one, in its “catching up” with humanitarian law. The international protection of human beings against the horror of violence will now be able to advance on two more balanced legs.
For the human rights discourse, moreover, this will entail a major shift, allowing it to move from standard-setting and denunciation of violation to implementation.
The day that the worst human rights violations are not denounced in Geneva but tried in The Hague, even “realist” sceptics - who, in spite of the existence of international human rights norms, insist in describing human rights as the realm of idealistic wishful-thinking – will be forced to take human rights seriously.
3. The ICC and the prevention of conflicts
Although we must be aware that universal, perpetual peace is an inspiring goal rather than a concrete targets, it has become evident (see also what remarked above on the crime of aggression) that the international community is today trying to move beyond the mere regulation of conflict and starts, more ambitiously, to aim at its prevention. The fact that we will never be able to prevent all conflicts should not discourage us from trying to avert all those that we can prevent.
Conflict prevention is today a “growth industry” within international relations. The UN and its agencies, the World Bank, the EU, OSCE and OECD as well as regional organization, in particular the OAU, are all trying to devise strategies for the prevention of conflict.
Given the fact that conflicts are produced by a plurality of causes, conflict prevention necessarily embraces a plurality of tools and approaches: from preventive peacekeeping to economic development; from preventive diplomacy to governance issues. Yet, though the causes are many, they are but “raw material” in the hands of human agents, i.e. of those political and military leaders who foment, lead and carry out conflict. Abandoning all “naturalistic” approaches, which are both fatalistic and inevitably racist (as if it were more natural for certain groups of human beings to slaughter one another than to coexist) we should focus our attention on the promoters and the purveyors of organized violence, on the way they originate conflict and on the way they conduct it.
The ICC Statute does exactly that, thus introducing a powerful deterrent to conflict. It does so by shifting the focus on the roots of conflict from causality (the mode that lends itself to justification, in the light of history, of just about any possible human horror) to imputation. It stops asking: What? And starts asking: Who?
This appears especially promising as far as internal conflicts are concerned. Indeed, in many if not most so called “ethnic” conflicts, the dividing line between political violence and common on criminality is difficult to ascertain. Especially in these cases we can be hopeful that the deterrent effect of the functioning of an International Criminal Court will be powerful on warlords and other local leaders who promote conflict not in the pursuit of national or political causes but rather trying opportunistically to achieve personal gain through organized violence.
Such characters, not being motivated by high ideals or political causes, have a tendency to operate on the basis of a cost/benefit analysis: raising the possible cost of their action would definitely make them ponder about the advisability of promoting and performing large-scale criminal acts.
4. Answering objections
The birth of the ICC has been marked – I would say marred – by strong opposition on the part of some countries (especially the United States) as well as doubts and objections formulated by some international experts and commentators. Let us try to briefly address them:
“A threat to sovereignty”. If we replace the loaded term “threat” with the more neutral term “limitation”, then there is nothing to argue about this definition. Indeed, the ICC entails a limitation of national sovereignty. But where is the scandal here? Unless we deny the obligatory nature of international law (a rather radical position) we must admit that nation-states do not operate in a Hobbesian state of nature, but exercise their sovereignty within certain bounds and according to certain rules. How can we posit a boundless exercise of national sovereignty in the presence not only of the myriad of norms deriving from general international law, both customary and treaty, and from the UN Charter?
Indeed, sovereignty should be seen not in absolute, idolatric terms, but rather in view of its double function: a) a safeguard of independent action by individual states as subjects of international law and b) a governing principle assuring the functioning of the international system. In other words, there is a “dysfunctional sovereignty” (sovereignty that translates itself into international aggression or internal extermination) and a “functional sovereignty”. The distinction between the two is determined by international norms and principles. We believe that in the complex relationship between international law and sovereignty (two terms that are not incompatible, but are joined in variable bipolar tension) the international community is gradually coming to the point of switching from the principle: “All the international law compatible with sovereignty” to another one: “All the sovereignty compatible with international law”.
For all practical (and political) purposes, however, the issue should not be put in terms such as ICC versus sovereignty”, but with a focus on the search for a guarantee that the mechanism set up by the Court does not sacrifice, in terms of the needs of the international system, the legitimate sovereign prerogatives of the states that form it.
To say that the ICC abolishes state sovereignty is a gross exaggeration. Its most salient feature, indeed, is its complementary nature. It is a “court of last resort” which will come into play only in cases in which national courts prove themselves unable or unwilling to prosecute the crimes falling within its mandate. To mention one specific case, Captain Medina and Lieutenant Calley would not have been indicted by the ICC – had it existed at the time – for the Mi Lai massacre, since they were tried in a US military court.
It is, moreover, important to point out that the Statute of the ICC, while being radically innovative, is not as “revolutionary” as its critics maintain it to be, insofar as it simply identifies – but does not introduce for the first time[5] – the crimes that fall within its mandate (from genocide to crimes against humanity, to war crimes). The only exception is the crime of aggression: one, however, which is kept in abeyance until an agreed definition is reached. Besides, opponents of the Court are disingenuous when they decry the breach, by the ICC, of the monopoly of criminal action traditionally vested in nation-states while we are all aware of the fact that the concept of universal jurisdiction for the worst crimes (genocide, torture, grave breaches of humanitarian law) has been a legal reality for quite a while.
“Vulnerability to political manipulation”. An objection that is just as strong as that referring to a “threat to sovereigny” is that which is centered on the danger that the ICC could be utilized for pretextuous and politically instrumental purposes. Indeed, this is perhaps the less theoretical, more concrete reason for present US enmity to the Court.
From the point of view of theory, we cannot but agree on the existence of such a danger, adding immediately, however, that this happens to be a constant possibility for both criminal and civil law.
We did not need the coming into being of an International Criminal Court to know that tribunals can be, and have been, influenced and distorted in their functioning and their pronouncements by the more or less hidden particular agendas of parties or by the orientation, social or political allegiance or interest of judges. The whole point is not, of course, opposing the existence of tribunals or delegitimizing them ex ante because of their possible hijacking by spurious interests and goals, but rather setting up a functioning system of checks and guarantees. The Court does possess such checks and guarantees, and, besides, the Statute includes (something which many of its supporters have considered a painful concession to doubters and souverainistes) the possibility for the UN Security Council to stop it in its tracks when it so decides (Article 16: “Deferral of investigation or prosecution”). Even imagining – with some effort - that the high-level, reputable judges that will be appointed to the Court could show themselves prone to acceding to an instrumental, political use of its proceedings, this seems to be a very powerful safeguard against such a theoretical possibility becoming a real problem.